Why is Standard of Review So Addictive?

I smiled as I read the email from Léonid Sirota. Why not, he asked, mark the 10th anniversary of Dunsmuir v. New Brunswick, with a series of blog posts running up to March 9, 2018? Why not, indeed? Standard of review has an addictive quality and a good part of Canada’s legal community has long been hooked.

Sure enough, when we sent out invitations to contributors, the response was overwhelmingly positive. Academics, practitioners, judges (sitting and retired) agreed — usually immediately and with infectious enthusiasm — to write something to mark the occasion. One of them has even written two pieces.

Why is everyone so anxious to get their fix? In this post, the first of the the forty-or-so contributions from Canada and beyond that will feature here on Administrative Law Matters and on Double Aspect in the coming month (and, later this year in a special issue of the Canadian Journal of Administrative Law & Practice), I will offer some reflections on why Canadian lawyers remain transfixed by the “standard of review”.

First, the sheer volume of administrative law cases decided by the Supreme Court of Canada.

I have in mind here cases in which the general principles of judicial review of administrative action — legality, reasonableness and fairness — fall to be applied by the Court. There is plenty of grist for the administrative lawyers’ mill, comfortably a dozen cases a year to grind our way through. And there is an understandable desire in the Canadian legal community to work the Court’s output into a digestible product capable of nourishing lower courts and litigants who need, after all, to know ‘what the law is’.

Second, the Court does not deal with these cases in a consistent way.

• Sometimes it ignores administrative law altogether, deciding a case as if it were an appeal from a lower court.
• Sometimes its decisions are in tension with other decisions, as in 2011 when it said, in the space of a day, that reviewing courts should not supplement administrative decision-makers’ reasons for decision and that reviewing courts should supplement administrative decision-makers’ reasons for decision (a phenomenon that has just recurred, albeit with a couple of weeks between the decisions); or, to give a pre-Dunsmuir example, as in 2007 when it said, again in the space of a day, that reviewing courts should segment administrative decisions and that reviewing courts should not segment administrative decisions.
• Sometimes it is difficult to reconcile the Court’s choice of analytical framework in a case with its choices in other cases.
• Sometimes the Court does not apply the general principles of administrative law in the way it has insisted they should be applied — disguised correctness review, to be discussed by David Mullan and Joseph Robertson, is a prominent example.

Whatever the reason(s) for the inconsistencies — on which I have offered some thoughts — that the Court is ‘large and contains multitudes’ invites scrutiny and comment (often adverse).

Volume and inconsistency contribute to Canadian administrative law being, as David Stratas has put it, a never-ending construction site. Indeed, although Dunsmuir provides the occasion (and title) for this symposium, it is arguable that some of the post-Dunsmuir cases are even more significant features of the Canadian legal landscape. Alberta Teachers’, with its presumption of deference, and Newfoundland Nurses, with its presumption of reasonableness, could be said to be more important than Dunsmuir in practice. Each new decision can represent a new brick, the careful placement of a supporting beam, assiduous repointing of crumbling mortar or, alternatively, a sledgehammer swung wildly at a load-bearing wall. But even administrative law afficionados never know in advance what will happen next, giving the subject what cognitive pyschologists call a “variable reward” structure, a highly addictive property.

Third, standard of review touches on issues fundamental to the legal order.

This is true across the common law world — see the regular supply of articles in English journals on Wednesbury unreasonableness and proportionality, for instance — and Canada is no exception. Questions abound about the allocation of authority between branches of government, about foundational concepts such as legislative intent, expertise and individual rights. Dunsmuir itself makes reference to the “rule of law” and “democracy”, constitutional principles which form a crucible in which the standard of review jurisprudence takes shape.

Even the most humdrum administrative law cases require a reviewing court to ask a fundamental question: “who gets to decide?” What seem like technical issues, like the one raised by to be John Evans about whether an administrative decision-maker’s entitlement to determine questions of law should be a pre-condition for deference, require courts to ask whether front-line decision-makers have sufficient expertise and legitimacy to opine on legal matters.

Who could be bored when abstract concepts that have entertained legal theorists and political philosophers for centuries are implicated in every administrative law case? It is remarkable, as Nicolas Lambert and Matthew Lewans will point out, that Dunsmuir is famous for what it says about the standard of review analysis and not for what it says about the removal from office of a public employee, which is in one sense what the case was really about.

In addition, as the contrasting approaches to be advocated by Andrew Green on the one hand and Peter Gall and Lorne Sossin on the other will illustrate, choices about standard of review map onto preferences for rules and categories versus standards and contextual analysis, which are often underpinned by deep-rooted philosophical convictions about how the legal system ought to be ordered.

Fourth, it follows that standard of review is highly political.

It is no accident that Professor Dyzenhaus’s seminal article is entitled “The Politics of Deference”. Not only do ideological choices fall to be made in individual cases (as Joseph Robertson will remind us) but the balance between judicial, legislative and executive power — which courts are always striking in administrative law cases — is inherently political.

Deference can be justified on efficiency grounds, on the grounds that administrative decision-making involves the elaboration of policy (with which judges should not lightly concern themselves), or on the grounds that administrative decision-makers have, by virtue of their familiarity with their area of activity, legitimacy to develop decisions that are deserving of respectful attention from courts.

The Court — and Canadian courts generally — varies in its enthusiasm for these rationales, over time and between cases. The resulting tensions and occasional outright revolt (one of which to be noted by Shaun Fluker) add to the fascination.

Moreover, as we will see over the course of this symposium, variable enthusiasm for the rationales for deference can also be detected in the Canadian legal community, which means that the tensions and revolts are eagerly seized upon by standard-bearers for different approaches to administrative law, increasing the volume and intensity of standard of review debates.

My conclusion, to borrow from the poet Philip Larkin, is that the standard of review is “like something almost being said”. So it is that when the Court indicates that it is going to speak, or when members of the Canadian administrative law community agree to give voice to their thoughts, we addicts gather round in the hope of a satisfying fix.

This content has been updated on February 11, 2018 at 21:51.